Town Square

Oak Grove developers file lawsuit

Original post made
on Dec 20, 2007

Taiwan-based property owners Jennifer and Frederic Lin have filed a suit in Alameda County Superior Court against opponents of their plan to build 51 estate homes in the Kottinger Hills.
The suit asks the court to block the efforts of a group called Save Pleasanton's Hills and its chief organizer, former City Councilwoman Kay Ayala, from proceeding with plans to stop the development.

Posted by Stacey
a resident of Amberwood/Wood Meadows
on Dec 20, 2007 at 11:14 am

Surprise, surprise. Another referendum heading to court for a judge to decide. So much for that beloved "voice of the people" direct democracy process. This would not have occurred if the property owners' attorney didn't think they had a case. I think it also shows a willingness to go to court over the matter since this is happening so early in the game. Look out, initiative!

Posted by Matt Morrison
a resident of Pleasanton Meadows
on Dec 20, 2007 at 12:04 pm

Hi Stacey!

Michael Roush has already taken a position that the petitions meet the requirements imposed for seeking a referendum. I am pretty sure our city attorney has some experience in this regard.

I am not a mind reader, but if I were to imagine myself in the developer's position looking at the number of signatures collected (which of my recollection is the largest total number of any referendum in Pleasanton) and the millions spent by Pardee Homes' campaigning for the "Livermore Trails" development in North Livermore (also a Lin property) only to lose an election by a wide margin, well, I would consider running to the courts.

Speaking rhetorically, if one believes a democratic vote won't prevail, what option other than the courts is there? (I suppose in some countries a military could be used to crack some heads!)

Once the Alameda County Registrar notifies the City Council that the required number of signatures are valid, the City Council has a brief time to decide whether to rescind approval or place the matter on Pleasanton's next election (I don't think the referendum can wait until November 08, I believe it needs to be March or maybe June). By then the City of Pleasanton, I believe, will be firmly obligated to defend the referendum.

In a purely speculative editorial comment, this appears to be a SLAPP suit (Strategic Lawsuit Against Public Participation).

Posted by frank
a resident of Pleasanton Heights
on Dec 20, 2007 at 3:49 pm

The number of signatures on a petition is not a measure of anything when and if the petition is found defective for the reasons charged in the lawsuit, which amount to a charge of misleading the public that signed the petition. Since many of us participated very actively in these threads during the signature gathering phase discussing and arguing these very issues, so it is not surprising to me the lawsuit was filed. We are all very familiar with the tactics and mis-representations that were rampant.

Under the law if the party of interest believes the petition is invalid because of any defect, they lose their right to sue once the election takes place. Therefore, the lawsuit must be filed before the election if it to be filed at all.

Regarding city attorneys as generally being expert in land use law, it is my opinion that one cannot conclude this to be generally true. Further, city attorneys are generally conflicted in matters of politics, whereas private law firms march to a different drummer, so to say.

Normally courts will be hesitant to find against an initiative or referendum pre-election, but they have if the defect is serious so as to affect the signers when they sign the petition. So, we can all speculate one way or the other, but it is clear that this thing has now moved to a court both because the developer has a financial interest and the Save Our Hills group provided a reasonable legal basis for the lawsuit through their actions.

This is a last ditch attempt by the developer in filing this "SLAPP" suit.

frank, you say it is clear that this has moved to a court since the "Save Our Hills group provided a reasonable legal basis for the lawsuit through their actions." We all know, since we see it all the time, you do not need a reasonable legal basis to file suit. Anybody for any reason can file a suit; no matter how frivolous it is. Filing a suit does not gie any credibility to the argument. It only means you have a lawyer that is being paid one way or another.

I would hope the council tells them if they pursue this then the council will look at rescinding the approval without it going to the people. This would be similar to what happened with Ponderosa. If this does not happen then we might see a Council & Mayor recall petition floating soon. The Council cannot ignore those 5200+ signatures from Pleasanton residents (yes I know they need to be verified but the number is probably up there). I have never seen anything like this where the elected officials are out on the streets with signs telling the residents not to sign something that brings an issue to a vote of the people. They must strongly believe that the project will be voted down by the public. Otherwise they would be saying, "bring it on."

In an ironic twist, those collecting signatures had more information on them than the Council had in their packet when the Council voted upon it. So maybe the developer also feels that the vote by the Council to approve the plan is invalid since they did not have the complete tree report and other information when they voted on it?

Posted by Matt Morrison
a resident of Pleasanton Meadows
on Dec 20, 2007 at 5:10 pm

Hi Frank! (Wow, just like old times)

This matter is about State of California Election Law, not land use.

I seemed odd to me that Cox, Castle & Nicholson LLP would have argue the case Mr. R. Clark Morrison (no relation, except maybe from back in Scotland), listed in the "Best Lawyers in America" 2007 Directory as with a specialty in Land Use and Zoning.

Indeed, Mr. Morrison is described in material for an upcoming January 2008 seminar on California Wetlands as, "… experienced with large and controversial development projects". Hmmm.

Your argument about conflicts is really funky in that you seem to be inferring that private firms are less conflicted??? Indeed, private firms march to a different drummer, the one that pays 'em!

Over many years I have found Michael Roush to be in generally right-on in his analysis, sometimes a bit conservative. I have to believe this isn't the first time such charges have been leveled against a referendum here (Didn't the Merritt Property developers threaten to sue?). Under his tenure there have been at least a half dozen referendums, ergo I expect he is familiar with the requirements.

Since our Mayor and three city council members support the Oak Grove development, under your supposition wouldn't Mr. Roush be inclined to withhold judgment on the merits rather than state the petitions meet the requirements? After all, he is essentially putting the City on record against this, "… absolutely fatal flaw." (C. Morrison)

When you divide 5,200 by 70,000 (estimate for the current population of Pleasanton), you get 7.4%. I think this ratio is important because it represents the percentage of Pleasantonians that are against the Oak Grove project. Granted, some of the 92.6% of people who didn't sign the petitions cannot vote. It's just something to think about: 7.4% of Pleasanton are possibly jeopardizing this compromise land development project.

Now let's divide 77 acres (designated for the 51 homes) by 573 (total acreage of land under dispute) and you get 13.4%. This number represents the ratio of land that will not be the open space public park (86.6% of the land will be). Now consider that on this 13.4% of the total land area, there will be 51 houses on it. Hmm, let's see how we can compare this better.

There are 43,560 sq.ft. in 1 acre, the land for houses is 77 acres, so that's a total of 3,354,120 sq.ft. Ok, let's say each house will be an average to 12,000 sq.ft. And if 51 homes will be built, then that's a total of 612,000 sq.ft. of land used up for houses.

I wonder what the ratio of land used for houses will be to the total amount of Oak Grove land? Of Oak Grove land zoned for the houses?

So 612,000 sq.ft. house land divide by 3,354,120 sq.ft. of total land zoned for houses gives me 18.2%. Then let's take 612,000 sq.ft. and divide by the total acreage of Oak Grove land 24,959,880 sq.ft. (573acres x 43,560sq.ft.) and I get 2.5% of the total land will have houses on it.

Hmmm, and there's so far 7.4% of Pleasantonians in opposition to developing 2.5% of 573 acres. 2.5% of the hills will be saved? Huh?

Posted by fact checker
a resident of Another Pleasanton neighborhood
on Dec 20, 2007 at 5:47 pm

Someone better check their facts. The City attorney did not validate the referendum but only restated the intent by the authors of the referendum. In fact, the quote from Mr. Rausch used on the web site was taken out of context and the city attorney asked that it either be removed or have it presented within context. The web site allowed it to remain as originally presented, thus misleading many people. Again, I think it was Matt Sullivan who asked the the petition gatherers be honest and upfront when presenting their petition. Please, that would have been nice. I was approached a number of times with erroneous information and I know of people who started supporting the petition then withdrew their support when they knew all the facts. I asked questions and was told that I just did not understand the politics of this town.

By the way, there are a lot of Pleasanton residents who put heart and soul into this compromise. There is a grass roots group who is fighting this referendum.

I am really tired of people painting the "other side" as a group who doesn't care about the community. The politics of personal distruction will destroy this community. Personal allegations against people because they disagree will destroy this community. Focusing on this "us against them", (and we all know who "them" are) will destroy this community. Sometimes people disagree.

Posted by frank
a resident of Pleasanton Heights
on Dec 20, 2007 at 7:09 pm

So, let me address the salient points of protest to my post. The first involves frivolous lawsuits and willing to pay a lawyer.

While this could be true, we will determine how substantive the claim is in the preliminary hearing, at which time, if frivolity is dominant, the judge will find it and dismiss the claim. Further, I think one should assume that we are dealing with a professional private law firm that specializes in land use law and doesn't simply take clients money without providing good legal advice upon which its reputation depends. So, let's wait till the preliminary hearing before one concludes there is no basis for a lawsuit induced by defendant's actions.

Now regarding the city attorney, I have no knowledge regarding what his expertise is relative to either land use law or the law regarding initiatives and referenda. I simply warned that expertise should not be assumed. I further made a general statement regarding city attorneys being conflicted in matters of politics. This my opinion based upon experience with lawyers in general. Lawyers will generally take the devil's advocate position on matters as a tactic to bring out facts, issues, and concerns when dealing with BOTH clients as well as opponents. It is very effective and usually surfaces the facts quite efficiently. Once done, what if any legal action should be taken becomes apparent to everyone. I have observed city attorneys to be in a position where practicing this normal lawyering tactic is substantively inhibited by the immense political pressures put upon them on certain situations, this being one of them. Therefore, in my opinion I tend to diminish the weight I place upon their legal advice in situations that are highly controversial. I don't know any of the details regarding what our city attorney did or did not opine in this situation, but simply responded to the post where weight was placed upon a claimed opinion by our city attorney. However, the recent post suggests that the claimed opinion is not true.

On the last point, I will restate that 5,200 signatures of people who were mis-lead into signing the petition, if shown to be true, is NOT democracy in action!

You know quite well that the 5,200+ signatures reflected about 14% of the registered voters in Pleasanton. Last I remember we have many kids in our community who cannot vote yet and others in the community who are not registered for some reason or another. There are also a great deal of the 18-21 year olds who are registered but go to school outside the area so it would be unlikely to find them during the last month to sign their name in person (they don't have absentee signatures for initiatives/referendums yet). Getting that many signatures shows the concern the community has.

And you really think that having another several hundred pages attached to the signature page would have influenced people not to sign.

If you want some more stats, this plan calls for 750,000 cubic yards of dirt to be removed for the roads and the rough grading of the lot (does not include the final grading of the homes since we don't know exactly how large they will be). So divide 750,000 cubic yards of dirt with 51 homes and you have 14,705 cubic yards of dirt being removed for each home. I heard a truck that moves dirt can hold 10 cubic yards of dirt. So each home is requiring 1,451 truck loads of dirt to be moved. That is an incredible amount of dirt for each house!

That other poster was right, Shelley, you really want more houses in Pleasanton!

Posted by Interesting
a resident of Castlewood
on Dec 20, 2007 at 8:14 pm

I'm going to be very interested to see how many of the 5200 signatures are deemed valid. Everytime I was asked to sign the petition, nobody first asked me if I was a Pleasanton resident or if I was a registered voter. Also, I wonder how many people signed the petition multiple times thinking they were helping the cause? I guess time will tell. . .

Posted by Citizen
a resident of Another Pleasanton neighborhood
on Dec 20, 2007 at 10:00 pm

The description used by the editor "Taiwan-based property owners Jennifer and Frederic Lin have ..." borders on racism...designed to promote hatred. We have enough(too many)xenophobic residents of Pleasanton who desire an all white City, without cultural, religious, and ethnic diversity.

The Lin's have owned property in this City, and in the TriValley longer than most of the current residents.

Posted by Stacey
a resident of Amberwood/Wood Meadows
on Dec 20, 2007 at 10:25 pm

Shelley wrote: "Hmmm, and there's so far 7.4% of Pleasantonians in opposition to developing 2.5% of 573 acres. 2.5% of the hills will be saved? Huh?"

Here's another way to look at it. There's only 51 homes proposed. Say each household holds 2.59 people (US 2000 census avg. household size). That's about 129 more people in a 570 acre area to add to Pleasanton's 67,000 or so population. And Save Pleasanton Hills calls that "uncontrolled growth" in their initiative. *scratches head*

If the Lins and the developer had their way, Oak Grove would look just like Kottinger Ranch, but this current development plan that everyone seems so eager to referend will prevent that. Maybe in the future if the referendum and initiative passes, Oak Grove will still end up looking as offensive as Kottinger Ranch on those hills.

Posted by Susan
a resident of Pleasanton Meadows
on Dec 21, 2007 at 8:17 am

Let's remember that valid and verified signatures are different than the number of signatures that the "Save Pleasanton Hills" group claims. They will be verified for legibility and current voter registration minus the people who submitted withdrawal forms. We will have to wait and see on the outcome.

What is everyone afraid of at the ballot box? A costly and unneccessary election! There is no regularly scheduled municipal election in June so there are costs associated with an election. Nevermind the amount of money that both sides will have to spend to defend or fight the project. In addition, look at the number of valuable and talented community leaders who could be doing and spending money on something else, like maybe the Firehouse Arts Center.

The City Council did not go against the citizens voice when they encouraged people not to sign. They were backing an action they took. And by the way, they had two feet of information when they voted on the project.

If you are going to threaten recall (or referendum for that matter) everytime the Council does something you disagree with, God help us all. Why have a representative democracy at all? Our voice to elect councilmembers happens every even numbered year in November. Public service is noble and we sure don't act appreciative of the time and energy our elected officials put in on very difficult issues.

Posted by Stacey
a resident of Amberwood/Wood Meadows
on Dec 21, 2007 at 8:59 am

BTW, Hi Matt. It is always a pleasure to see your participation around here on the PW Town Forum. You are one of the few contributors, along with Frank, who are able to hold good civil discussions. I enjoy reading it.
Regarding Livermore Trails, someone elsewhere on this blog corrected me that Weyerhauser owned that property. I tried to look it up and it seems like the Lins were co-owners somehow.
An important difference between the Livermore Trails project and Oak Grove I think is that Pardee had to campaign because they were trying to get the Livermore UGB expanded whereas Oak Grove is already within Pleasanton's UGB. The parkland that comes with the Oak Grove project will secure that southern UGB.

Posted by Matt Morrison
a resident of Pleasanton Meadows
on Dec 21, 2007 at 2:59 pm

Stacey, thank you very much for your kind words (I also noticed your letter to the editor in another paper had some nice things to say). Frank's a hard hitter who certainly keeps me on my toes (thanks Frank!).

Shelly, a referendum does not in itself overturn a city council decision. It allows every registered voter the opportunity to weigh in on the decision (if the city council does not reverse itself). If only 7.4% of voters in the referendum are against the project it will go forward as planned.

It has been my experience that most Pleasanton residents fervently support preserving our surrounding ridgelines in their natural state and, of course, that is the central concern with this development. Not how many acres or how big the houses.

Fact checker, the event I referred to involves the letter sent by Lin's attorney, R. Clark Morrison, to the city requesting the signatures not be submitted to the county. The Weekly quotes Mr. Roush as saying the petitions meet the requirements which is contrary to R.C. Morrison's (don't want to confuse the Morrison's here) primary argument that petitioners were required to present more information to potential signers. I think you are confusing this with the city attorney's legal statement on the initiative, a quote from which was used by "Save Our Hills".

Susan, only an initiative is required to be on either a special election or the next regular municipal election. The referendum will likely be on the State Primary election in June.

Public Service is noble. Are you implying that being an elected official is the only avenue one can serve a community? Citizen committees and grass roots activism is vital to our democracy because not everyone has the capability or the passion to oversee the actions of our government ("by the people", remember?). I serve on the "Friends of Pleasanton" steering committee, will begin another term on the Tri-Valley Sierra Club's Executive Committee next year, served on the 2007 Sierra Club S.F. Bay Chapter's Nomination Committee, represented the Sierra Club this year on Zone 7's Streamwise flood control master plan, and volunteer regularly for a local community service group. I also am a member of Tri-Valley Cares to help participate in the peace and anti-nuclear movement. I am one of many who "give back" to our communities in causes we are passionate about.

I keep in mind the quote, "My country, right or wrong; if right, to be kept right; and if wrong, to be set right." (Senator CARL SCHURZ, remarks in the Senate, February 29, 1872)

I just want to re-state this so it is clear. I wrote "7.4% of Pleasantonians" and I also recognized the fact that "some of the 92.6% of people who didn't sign the petitions cannot vote."

Approximately 92.6% of the people in Pleasanton *who can or cannot vote* would otherwise possibly benefit from having a public park if it weren't for the "7.4% of Pleasantonians" who want stop the development of 2.5% of 573 acres.

Posted by Jenny
a resident of Vintage Hills Elementary School
on Dec 22, 2007 at 11:51 am

Shelley,

You are making up numbers and trying to convince yourself with numbers that this is not what the community wants. I have a novel idea. Let's let the people vote on it! Then we can settle this.

My guess is that the number of signatures collected for this referendum are much more than collected for the first Kottinger Hills Referendum, the Merritt Property Referendum, and the Ponderosa Referendum. I would also speculate that the number of signatures collected here in 30 days are more then collected in 6 months for all citizen initiatives in Pleasanton (going backwards that would be: Build our Sports Park, Save the Bernal Property Park, Save our Pleasanton Ridgelines, and probably more).

Approximately 92.6% of the people in Pleasanton *who can or cannot vote* would possibly benefit from having our hills and environment protected. We can let those who vote make the decision. That is what democracy is all about.

I would also expect that if the development is voted down in a referendum at the same election as our council/mayoral election that those people who support the development will also be voted out. I can see who those who voted for this development and are up for re-election in 2008 do not want this item on the ballot. They could be risking their re-election on this development. I can see that there will be a lot of contributions by developers going into this next election.

Posted by Stacey
a resident of Amberwood/Wood Meadows
on Dec 22, 2007 at 11:58 am

All of Pleasanton will benefit from the protection to the hills and environment _inside the UGB_ as granted by ordinance 1962. If ordinance 1961 is overturned, so is ordinance 1962. I think it is ignorance when others think that somehow referending ordinance 1961 will help protect the hills anymore than ordinance 1962 will. Why do you think so many open space and parks advocates are against referending ordinance 1961?

"You are making up numbers and trying to convince yourself with numbers that this is not what the community wants."
Actually quite the contrary! I wanted to get different perspective when looking at the issue. So I started *calculating numbers from the facts* about the Oak Grove development. The facts being that the total acreage is 573, 77 of which will have 51 homes on it. I wanted to get a better sense of the issue by looking at the ratios of land to be developed into housing vs. land to be developed as a natural park vs. the ratio of people who have so far stated they do not like the project by signing the petitions vs. the overall number of people in Pleasanton. That's all.
"...trying to convince yourself with numbers that this is not what the community wants."
Well, actually I'm trying to use numbers to get a better idea if this is actually what the community wants, or only 7.4% of the community.

Posted by Stacey
a resident of Amberwood/Wood Meadows
on Dec 22, 2007 at 12:27 pm

I think what the community wants is for the hills to be preserved. I'd like to see that too. So the question is, how do we do that?
The referendum certainly doesn't preserve anything. The initiative doesn't seem to really preserve anything other than restrict hilltop development in a limited capacity. On the other hand, Ordinance 1962 preserves the land with easements, but that is at risk due to the referendum.

Posted by frank
a resident of Pleasanton Heights
on Dec 22, 2007 at 6:17 pm

It was written above:

"My guess is that the number of signatures collected for this referendum are much more than collected for the first Kottinger Hills Referendum, the Merritt Property Referendum, and the Ponderosa Referendum. I would also speculate that the number of signatures collected here in 30 days are more then collected in 6 months for all citizen initiatives in Pleasanton (going backwards that would be: Build our Sports Park, Save the Bernal Property Park, Save our Pleasanton Ridgelines, and probably more)."

The poster is being disingenous to the present action charging that the petition mis-led the signers of the petition through both a fatal omission and additionally mis-representations (some people call them lies). No such charges occurred regarding the examples that are cited. If there were such charges, they apparently did not sustain. So, perhaps it is premature to proudly beat one's chest about the 5200 signatures as representing the will of the informed voter. Furthermore, the signatures still need to be successfully validated by the registrar of voters. When this occurs, it is likely the number will decrease, but can still certify if it meets the minimum required. Clearly, such a declaration of democracy having been accomplished is a bit premature, to say the least. E.g., "That is what democracy is all about." Appealing to judicial review to protect against factualism is also "what democracy is all about".

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